Robinson appealed both the injunction and the order for the Master’s formal inquiry into gallery rules. The Court of Appeal determined that the inquiry was not necessary because the case could be decided on the basis of breach of confidence. Robinson did not deny having imitated the composition and details of Wallis’s painting. For the Lord Chancellor, it was clear that Robinson did not have the right to do this, and that he knew as much. Turner had published a warning to photographers and Robinson never denied having seen this warning.
Robinson’s own advertisement, which responded to the allegation of piracy by insisting that he had photographed from a living model, also suggested to the court that Robinson knew that copying the painting was forbidden.103 The Lord Justice of Appeal also found that Robinson had acted surreptitiously and was in breach of confidence. He cited the fact that Robinson had not copied the painting in Cranfield’s Gallery, but reproduced the scene in his own studio, as further proof that he knew that he was not allowed to copy it.104
It will be recalled that Robinson denied having copied the painting at all. His goal was not to produce a single-image photograph but a stereoscopic view. Since the photographs that appeared on his stereo cards were taken from a live model and props in his studio, he did not see how they could be considered copies of the painting. His counsel added that the resulting stereo cards could not be said to harm the sale of the engraving because they were produced in a different manner and for a different purpose.105
That argument echoed the judge’s decision in the case of Martin v. Wright (1833), which is fully discussed in Simon Stern’s chapter in
102 Ibid.
103 Turner, 10 Ch. at 512–518.
104 Ibid. at 519.
105 Turner, 10 Ir. Ch. at 130.
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this volume.106 Briefly, the court held that the public exhibition of a diorama reproducing the design of the well-known painting and print of Belshezzar’s Feast by John Martin did not constitute infringement because ‘exhibiting for profit is in no way analogous to selling a copy of the Plaintiff’s print, but is dealing with it in a very different manner’.107 In other words, charging admission to view a representation of Martin’s design was not the same as selling copies of the print. But counsel for Turner insisted that in the present case Robinson’s stereo cards were in fact copies of Wallis’s painting, and that these copies would necessarily harm the sale of Turner’s projected engraving.
Martin v. Wright was decided on the basis of statutory copyright, whereas in the Irish Rolls Court Turner v. Robinson was being discussed in terms of common law protection for unpublished works. The scope of protection (what constituted infringement) was understood to be different in these two areas of law. Statutory copyright developed a number of exceptions that made it somewhat more flexible than common law protection for unpublished works, which was generally held to be quite broad.108 In this context it is not surprising that counsel for Turner made the following argument: ‘if persons could pirate the idea of a painting, and publish it as they pleased, the rights of engravers would be very seriously invaded’.109 Robinson objected to such a broad right in the ‘idea of a painting’. He claimed that his stereo cards, though indeed based on the idea of Wallis’s painting, were not copies of the painting itself.
In the Rolls Court, Smith found the fact that Robinson had copied to be obvious, though he insisted that it was highly unlikely that Robinson had worked from memory alone. In newspaper reports of the hearings, Smith is quoted saying that he thought Robinson must have worked from the engraving in the National Magazine; how else would he have been able to reconstruct even minor details? His choice of colors, however, indicated to the judge that Robinson had also benefited from his access to the painting at Cranfield’s Gallery.110 Wallis’s color choices
106 See Chapter 4 of the present volume.
107 Martin v. Wright (1833), 6 Simm. 297 (at 298–299). See Simon Stern’s chapter.
108 See Cooper, Art and Modern Copyright, pp. 215–216.
109 Saunders’s News-Letter, 7 June 1859.
110 Saunders’s News-Letter, 14 June 1859, 21 November 1859. The possibility that Robinson had worked from a photograph was apparently not broached in court. If
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were indeed distinctive — note the red hair, violet breeches, and red coat in Figure 1 — and like other artists associated with the Pre-Raphaelite style, Wallis painted on a white ground, which heightened the vibrancy of the colors. Although Robinson’s hand-colored stereo cards (Figure 2) could not possibly reproduce the vividness of the original, the fact that he used similar colors clearly worked against him in court. Smith acknowledged that it was reasonable to doubt whether Robinson’s stereo cards would represent ‘a serious injury to the owner of this valuable painting’, but he insisted that photographic reproductions posed a clear threat, evoking a sort of slippery slope that had to be avoided: ‘The photograph might by a very easy process be enlarged to the size of the original, and thus an unimportant piracy might be followed up by the adoption of another mode of piracy which would be most injurious to the owner of the painting’.111 It will be noticed that the judge consistently referred to the rights of the owner of the painting (in this case Egg, and by extension Turner as ‘bailee’) rather than to the artist himself.
The Court of Appeal was similarly unreceptive to the idea that Robinson’s stereographs should not be considered copies of the painting. The Lord Justice of Appeal stated that Robinson’s stereograph
‘does not, in my opinion, lose the character of a copy because it has been effected, not in the usual mode, but by an exercise of memory, and by ingenious scientific operations, which, by rendering the likeness more accurate, must or may diminish the demand for engravings, which constitutes so large a proportion of [the painting’s] value’.112 The fact that Robinson did not take the photographs directly from the painting but from a living model and props in his studio did not mean that they were not copies. On the contrary, the Lord Justice of the Appeal stated,
‘it is through this medium [i.e. the restaging of the painting as a tableau]
that the photograph has been made a perfect representation of the painting’.113 Thus the Court of Appeal held that Robinson’s stereographs were copies of the painting, and that it was illegal for him to make these copies regardless of the process or medium involved.
Turner had any evidence that Robinson had taken a photo in the gallery, this most certainly would have been mentioned.
111 Freeman’s Journal, 14 June 1859; Irish Times, 14 June 1859.
112 Turner, 10 Ir. Ch. at 519.
113 Ibid. at 521.
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The surviving record of proceedings suggests that there was no discussion of the contemporary cultural practice of creating tableaux vivants, or of whether it would have been lawful to restage Wallis’s painting as a ‘living picture’ if no photographic prints had been offered for sale. Did the tableau in his studio already constitute an illegal copy of the painting, or would it have been too ephemeral to rise to the level of infringement? The fact that Robinson had produced photographic prints that closely resembled the painting may have made such a question moot. But British courts did face this question in the 1890s, when major commercial theaters popularized the staging of ‘living pictures’ for large paying audiences. The owners of some of the paintings being imitated on stage sued for copyright infringement under the 1862 act. In one case that went all the way to the House of Lords, it was held that a tableau vivant performed as part of a stage play and newspaper illustrations of the same tableau did not infringe the copyright in the painting itself. The Lord Chancellor acknowledged that an infringing copy could be made from an intermediate work such as a tableau vivant, but in the case at hand he found that the newspaper illustrations were not sufficiently similar to the painting. As for the
‘living picture’ itself, it had already been decided at first instance and affirmed by the Court of Appeal that the live staging of the painting was not infringing because it was only temporary and did not result in any material ‘copy’ that could be forfeited under the 1862 act. In other words, a painting could be infringed by a drawing, photograph, or another painting, but not by the tableau vivant itself.114 The facts in Robinson v. Turner were different because the defendant had imitated Wallis’s painting so closely, and because he was offering physical copies for sale.